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Evidence

The extensive task represented by the reference meant that the ALRC addressed two issues—a review of the existing law of evidence and whether there should be a uniform law of evidence and, if so, how this should be achieved.

The interim report, ALRC Report 26, contained a detailed assessment of the law of evidence as applied in federal and Territory courts and recommendations for reform. A draft Bill was attached to that report to stimulate public discussion.

The legislation contained in the interim report was the subject of extensive consultation. The ALRC revised the interim legislation and published it in the final report. Accordingly, the two reports need to be read together to obtain a comprehensive picture of the ALRC's work on this reference.

Key recommendations

Uniform evidence rules should apply in proceedings in Territory and federal courts. This comprehensive uniform law should modernise and clarify the existing rules of evidence.

The primary rule of admissibility should continue to be that if evidence is relevant, directly or indirectly, to an issue in the case, it is admissible unless otherwise excluded. If it is not relevant, it should be inadmissible. Residual discretion to exclude evidence where its probative value is outweighed by the disadvantages of its admission should also be included in the legislation. The ALRC's draft legislation sets out other rules of admissibility, which exclude relevant evidence and a small number of specific discretions allowing the court to exclude evidence. These include, in criminal trials, the common law discretion to exclude prosecution evidence where its prejudicial effect outweighs its probative value.

As a general rule, hearsay evidence should continue to be excluded apart from a number of limited and well-defined exceptions.

To be admissible, an admission must be shown not to have been influenced by violent, oppressive, inhumane or degrading conduct and must be shown to have been:

made in circumstances unlikely to affect its truthfulness adversely;

recorded, or a subsequent confirmation recorded, or made while an independent person was present unless the alternatives were reasonably practical; and

made after the suspect was cautioned.

The privilege against self-incrimination should be modified so that a witness can claim the privilege, but if they are prepared to testify, they should be given a certificate preventing the evidence they give being admitted against them in later proceedings.

Legal professional privilege should be amended to define it more precisely and to prevent abuse.

Other confidential communications should be privileged if a court on application determines that the competing public interests in the relationship concerned favour the application of a privilege. This principle would cover relationships such as doctor/patient, priest/penitent and journalist/source.

The existing law on the admissibility of both lay and expert opinion evidence should be rationalised. Courts should be given powers to make rules of court dealing with pre-trial exchange of expert reports.

Tighter control is required on cross-examination of witnesses on matters going only to their credibility.

An accused's spouse should be a compellable witness for the prosecution, but should be able to seek exemption from the trial judge.

The right of an accused to make an unsworn statement should be retained.

There should be a prima facie presumption that an individual is entitled to give their evidence through an interpreter unless the court makes an order to the contrary.

Rules that limit the ways in which contents of documents can be proved should be abolished and replaced with a new regime.

Implementation

In 1991 the Standing Committee of Attorneys-General gave 'in principle' support for uniform evidence laws. The Commonwealth and New South Wales governments worked together to develop a uniform law.

The Evidence Act 1995 (Cth), enacted in February 1995, provided a comprehensive law of evidence to apply in federal courts and, with the agreement of the Australian Capital Territory, in the courts of the ACT. The Act reflected substantially the recommendations made by the ALRC. In June 1995, New South Wales enacted similar legislation in the Evidence Act 1995 (NSW).

It was anticipated that the other States and Northern Territory would adopt the uniform legislation. Tasmania joined the uniform legislative scheme, with some changes, with the adoption of the Evidence Act 2001 (Tas). Victoria adopted the uniform scheme in 2008, passing its Evidence Act 2008 (Vic).

The Evidence Act 2011 No. 12 (ACT) received assent on 13 April 2011. When it commences, the ACT will have independently joined the Uniform Evidence Act scheme. Previously, the provisions of the Commonwealth Evidence Act 1995 applied directly to the ACT.